Delhi High Court
Sidharth Sawhney vs M/S French Bakery Pvt Ltd And Ors on 15 December, 2021
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15.12.2021
+ ARB.P. 1084/2021
SIDHARTH SAWHNEY ..... Petitioner
Through Mr.Akshay Bhatia & Mr.Ravi
Sharma, Advs.
versus
M/S FRENCH BAKERY PVT LTD AND ORS ..... Respondents
Through None.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (oral)
1. The present petition has been filed under Section 11 of the Arbitration
and Conciliation Act, 1996 read with Section 2 of the Commercial Courts,
Commercial Division and Commercial Appellate Division of the High
Court, 2015 seeking appointment of sole Arbitrator to adjudicate the
disputes with respondents.
2. Respondent no.1 is a private limited company and engaged in the
business of patisseries/bakery retail operations. Respondent no.2 is the
Managing Director of the company and respondent no.3 is the Chairman and
also one of the Director of the company, however, none has appeared on
behalf of the respondents.
3. As per office report from Registry, service report qua notice to
respondents through courier, speed post, email, fax and Whatsapp is
awaited. Further, as per the office report from the Registry, notice sent to
respondent no.1 through the ordinary post is served.
4. As per the affidavit of service filed by petitioner, service upon
respondents have been affected through speed post and courier as the same
is evident from the documents annexed with the affidavit of service filed by
learned counsel for the petitioner. Considering the aforesaid facts, it can be
said that respondents are deemed to be served, but despite that respondents
have preferred not to appear before this Court. It seems that respondents
have nothing to oppose in the present petition.
5. As per the averments made by petitioner, petitioner is the sole and
absolute owner of the property bearing no.SG-22, Galleria Shopping Mall,
Phase-IV, DLF Qutab Enclave Complex, DLF City, Gurgaon admeasuring
961 sq. ft.
6. According to the petitioner, respondents approached him for taking a
portion admeasuring 602 sq. ft (super area) and 421 sq. ft. (covered area) of
the above-mentioned property on lease. They further requested the
petitioner to let out the aforementioned portion on the monthly rental basis
as they wanted to carry out their business of patisseries/bakery retail
operations from the said portion. Upon the aforesaid proposal, a lease deed
was executed between the parties on 20.04.2018 and petitioner let out the
aforementioned portion of the premises to the respondents for a period of 6
years commencing from 01.02.2018 to 31.01.2024 out of which first 3 years
shall be the lock-in-period from 01.02.2018 to 01.02.2021. Since then the
respondents are in peaceful occupation and possession of the
aforementioned premises.
7. Thereafter, the respondents started defaulting in making the payment
of rent and other applicable charges, TDS and GST when the cheque for a
sum of Rs.5,93,376/- bearing cheque no.726886 dated 04.03.2020 drawn on
Yes Bank issued by the respondents to the petitioner got dishonoured and
returned unpaid vide bank memo dated 05.03.2020 with remarks "Funds
Insufficient". Petitioner immediately through his employee sent an email to
one Mr.Raman Oberoi, authorised representative of respondents informing
about the dishonour of the abovementioned cheque and requested to make
payment through RTGS. However, Mr.Oberoi neither replied nor complied
with the above request. Petitioner again through his employee sent email to
Mr.Oberoi demanding aforementioned due payment but of no avail. As
Mr.Oberoi was not responding, petitioner sent email to Mr.Oberoi asking
about the issue and in response to that, Mr.Oberoi sent reply by email stating
that "Our main bank is with Yes Bank and our major funds get stuck with
Yes Bank, I believe the things will resolve within couple of days, till then
bear with us."
8. It is submitted that on 20.03.2020, respondents made part payment of
Rs.3,00,000/- to the petitioner and promised that balance payment of
Rs.2,93,376/- shall be made as soon as possible. On 24.03.2020, respondent
no.1 along with Chairman and Director (respondent no.3) requested for
waive off rent and other charges from 22.03.2020 due to lockdown,
however, petitioner refused the same. Against the payment of rent and other
charges, petitioner presented the cheque in the month of May, 2020 which
got dishonoured with the remarks "Funds Insufficient".
9. Thereafter, petitioner sent a legal notice on 20.05.2020 under
Negotiable Instrument Act and demanded the arrears of the rent; sent
various legal notices and also filed criminal complaints too. Accordingly,
petitioner invoked arbitration clause and sent an invocation notice to the
respondents and in the said notice, petitioner appointed its sole arbitrator.
However, in response thereto, respondents appointed two Arbitrators of
their choice. Being dissatisfied with appointment, the present petition has
been filed.
10. In view of the fact as narrated above, this Court deems it appropriate
to appoint its Arbitrator to adjudicate the disputed between the parties.
Accordingly, the present petition is allowed and Mr. Amar Nath, DHJS
(Retd.) (Mobile: 9958697030) is appointed sole Arbitrator to adjudicate the
dispute between the parties.
11. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
12. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the arbitration.
13. The present petition stands disposed of.
14. A copy of this order be sent to the learned Arbitrator for information.
(SURESH KUMAR KAIT)
JUDGE
DECEMBER 15, 2021
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